Rosenfield v. Fine

Decision Date20 September 1937
PartiesROSENFIELD et al. v. FINE et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Suit in equity by Anita G. Rosenfield and others against Annie Fine and others. From the decree, named defendant appeals.

Affirmed.Appeal from Superior Court, Suffolk County; Walsh, Judge.

W. M. Noble, M. Tobey, and F. W. Young, all of Boston, for appellant.

R. T. Parke and M. Rosenfield, both of Boston, for appellee.

LUMMUS, Justice.

This is a bill in equity under G. L. (Ter. Ed.) c. 214, § 3(7), to enforce against the defendant Annie Fine, for a deficiency after a foreclosure, a real estate mortgage note for $16,000, dated June 13, 1924, of which she was one of the makers. The only question before us is the right of the plaintiff Rosenfield to enforce the note against the defendant Annie Fine in the name of the surviving payee, one Viles.

The note and mortgage ran to the order of Viles and another who died in 1929. Thereafter Viles had legal title to the mortgage and note. G. L. (Ter. Ed.) c. 184, § 7; Park v. Parker, 216 Mass. 405, 103 N.E. 936;Dewey v. Metropolitan Life Ins. Co., 256 Mass. 281, 284, 152 N.E. 82. The mortgaged real estate at the time the mortgage and note were given was held by three tenants in common, Lizzie Gamer, wife of George Gamer, one Drooker, and the defendant Annie Fine. On December 1, 1924, the defendant Annie Fine and Drooker conveyed their shares to Lizzie Gamer, subject to the mortgage for $16,000. From that time until April, 1934, payments were made on the note by George Gamer. He and his wife were among the makers of the note. He was and is financially irresponsible. He made on April 3, 1934, and later recorded in the registry of deeds, a declaration of trust, covering such property as the might acquire as trustee, in favor of his three daughters Ida Gamer, Frances Gamer Springer, and the plaintiff Anita Gamer, now married to an attorney named Rosenfield. On the same day, April 3, 1934, Viles entered into a written agreement with Gamer as such trustee to convey to him the mortgaged property for $7,000 and either to advance the purchase price to him on mortgage or to reduce the existing mortgage to $7,000, the purchaser paying the taxes and other municipal liens. A foreclosure was contemplated, at least as a possibility, for the agreement provided that in case of foreclosure the mortgage note was to be assigned to the purchaser.

Viles foreclosed the mortgage by sale on May 3, 1934, and caused the property to be bought for $7,000 in the name of his agent, who, after receiving a foreclosure deed, conveyed to George Gamer as such trustee. The validity of the foreclosure is not challenged. The money for the expenses of foreclosure, taxes, and other municipal liens, amounting to $1,018.25, was furnished by his three daughters. Gamer as trustee gave back to nominees of Viles a purchase money mortgage for $7,000. Viles delivered the mortgage note for $16,000 to George Gamer as such trustee without indorsement. On May 7, 1934, George Gamer as such trustee assigned all his interest in that note to his three daughters, and later the other two assigned their interests therein to the plaintiff.

On October 25, 1934, the defendant Annie Fine purchased the $7,000-mortgage, and took title in the name of an agent. On November 19, 1934, George Gamer as such trustee borrowed $1,000 from the defendant Annie Fine, and gave her a second mortgage on the same property. In January, 1936, the defendant Annie Fine caused foreclosure proceedings to be begun under the $7,000-mortgage. Thereupon the plaintiff, on January 9, 1936, brought this suit.

The sharp practice and harsh conduct of members of the Gamer family in obtaining title to the original note and enforcing it against the defendant Annie Fine, who had parted with her interest in the equity of redemption many years before, with the prospect that some of the Gamer family will get the property free of all encumbrances at her expense and a substantial sum of money besides, emphasize our duty to study the evidence with care before affirming the decree. But we are unable to find any legal wrong in the conduct George Gamer as trustee or in that of his daughters. It is true that in 1924 the three cotenants of the property had a private auction at which Drooker bought the property for a price that included the Viles Mortgage and thus impliedly agreed with his cotenants to assume it. Flynn v. Kenrick, 285 Mass. 446, 189 N.E. 207. Drooker turned over his bargain to Lizzie Gamer, and she...

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